MORE ON REDACTED AND THE NYFF

Jurgen Fauth posted in the comment section of the post below about the dust-up at the NYFF press conference over Brian DePalma’s Redacted and the black bars that now appear over the film’s final images. He links to his own blog, which has both a video clip of DePalma at the conference as well as a detailed description of what happened, which I’ll quote here:

When selection committee member J. Hoberman asked about the black bars that now cover some of the photographs at the conclusion of the film, Palma didn’t pull any punches, either: Redacted is now itself redacted,” he said. “My cut was violated.” No sooner had he fingered producer Mark Cuban for the changes in the film that a lone voice spoke up from the back of the Walter Reade Theater: “That’s not true!”

Eamonn Bowles from Magnolia Pictures went on to contradict DePalma, and after the conference, co-producer Jason Kliot took to the stage to explain that he saw the problem not as a “Cuban vs. De Palma type silly debate” but an issue of Fair Use laws, which he considered completely unfair: “they set it up so we cannot use images of our own culture to tell the truth about our own culture.”

I was less inclined to see this as a pure stunt. I knew DePalma had been pushing this button at press conferences as far back as Telluride, where his statements were vague enough to be misinterpreted but loud enough to be difficult to miss. If this fighting between filmmaker and distributer started as a ploy for attention, then it doesn’t make sense that Magnolia would wait this long to publicly respond. Still, unsure how to interpret this latest event, I sent an email this morning to Mark Cuban to get the official word. Cuban confirmed to me that Magnolia has, indeed, asked DePalma to remove the images from the film, and will not release Redacted unless the final montage is cut.

“The film is going to be ‘redacted’ before we release it. He is using images that have not been cleared. We can not use images that have not been cleared. No movie can,” Cuban writes, noting that Magnolia has offered DePalma the opportunity to buy the film back and release it on his own dime. “At that point if its a matter of principle to him, he can absorb 100 percent of the risk and release the film as he sees fit. If he chooses not to, then we will release the movie without the images.”

there was absolutely no calculation involved at the press conference yesterday. depalma has been on a toot about how we’ve compromised his film, and then he stated publicly at the official nyff press conference that in no uncertain terms mark cuban, for aesthetic reasons, wanted the photos out of the film. i had just arrived and this was one of the first things i heard. in an almost tourette’s like moment, i just blurted out out that it wasn’t true. the thing that really frosts me is that we’ve been incredibly above board and have funded and continue to unapologetically support this incredibly incendiary film. the sole reason that the photos are redacted, is that it is legally indefensible to use someone’s unauthorized photo in a commercial work. any claim to the contrary is either hopelessly naive or willfully false. And any indemnification does not preclude getting sued, and considering the asset bases of cuban and wagner versus depalma, there’s no issue about who’s purses will be attacked (not to mention the presumption of agreeing to the image of one of your loved one’s mutilated body living on in the world wide media). the fact of the matter is, none of the companies that have released depalma’s work in the last 30 years would ever touch this film. and because our company, which has had it’s fair share of controversial, uncompromising films, actually was the one stupid/brave/committed enough to do so, we end up being the evil force trying to shut down a director’s vision. file this under no good deed goes unpunished…. and this just in – the dga has ruled unequivocally AGAINST depalma on the issue of the photos.

I’d love to beat the drum on DePalma’s behalf here, but as a producer I’ve dealt with this issue so many times before, maybe not in films where the issue has been debated as vigorously as it is being in Redacted, but in ones where the legal principle remains the same. Bowles’s key quote: ” the sole reason that the photos are redacted, is that it is legally indefensible to use someone’s unauthorized photo in a commercial work. any claim to the contrary is either hopelessly naive or willfully false.”

Fair Use law is complicated and we live in a clearance culture here in the U.S. I’d guess that the producers of this film tried to get E&O insurance on the use of these images and weren’t able to and Cuban and HDNet weren’t willing (as very few distributors are) to distribute without it. There is also the privacy issue that Bowles brought up, and I suspect the argument here is complicated by the fact that, at the end of the day, Redacted is a work of fiction, not a documentary, so the argument that these images fall into the realm of “news” may be emotionally but not legally true.